Clark v. Hammerle

• Citation: 36 Mo. 620
• Parties: LEVI B. CLARK, Respondent, v. MARTIN HAMMERLE, Appellant.
• Decision Date: 31 October 1865
• Court: United States State Supreme Court of Missouri

36 Mo. 620

LEVI B. CLARK, Respondent,

v.MARTIN HAMMERLE, Appellant.

Supreme Court of Missouri.

October Term, 1865.

Appeal from St. Louis Land Court.

This case was before the court in 27 Mo. 55. On the trial of the case below, the plaintiff gave in evidence:

“1. Copy of registry of claim from Hunt's Minutes, page 116, in the name of %7 F‘ Joachim Roy's legal representatives,’ for a lot in cul de sacof one and a half arpents ‘ by about thirty in depth,’ bounded north by Guion, south by Tabeau, east by Auguste Chouteau's mill tract, and west by Charles Gratiot.

2. Copy of registry of certificate of confirmation, dated July 30, 1825, in favor of ‘Joachim Roy's' legal representatives, for common filed lot in cul de sac, of one and a half arpents ‘by about thirty deep,’ by virtue of

3. A will of Joachim Roy, March 28, 1789, devising all of his estate to Veronique Guitard, and copy of the same.

4. United States private survey No. 3307, for Joachim Roy's legal representatives under the above claim and registry of confirmation, and which covered the premises in dispute.

5. Certificate of burial of said Roy, June 25, 1801.

6. Certificate of burial of V. Guitard, December 8, 1808.

7. Will of V. Guitard, August 19, 1808, whereby, after devising some personal property to others, she ordains that ‘the remainder of the properties that she shall leave after her death shall be equally divided between her two other children, Francois Cayoux and Eustache Cayoux, the said children to enjoy the same.’

8. Deed of said Francois and Eustache Cayoux to William Carr Lane, August 1, 1825, for said lot.

9. The defendant admitted that Veronique Guitard first married one Cayoux and had four children by that marriage, viz., Francis, Eustache, Louis, and Josette; that said Cayoux died, and his widow married Joachim Roy; that said Roy died, leaving his widow, but no children by her; that all the title held by Lane was vested in the plaintiff, and that defendant was in possession of the premises at the time alleged.

10. A certificate of confirmation issued March, 24, 1857, by Renard, Recorder of land titles, under the claim of Roy's representatives, as above set forth, and being in favor of said representatives.”--This was objected to as incompetent; it was after the suit was commenced, and it was issued without authority. Objections overruled and exceptions taken.

The appellant (defendant below) gave the following evidence:

“1. Letter of William Carr Lane to ‘Gen. Milburn, Surveyor,’ &c., dated June 20, 1840, and while Lane was owner of the title now held by plaintiff. In this letter he says, ‘I assert of my own certain knowledge, that the proof taken before the Recorder--No. 2, page 116--called for 40 arpents, instead of about thirty, before the record was altered. I have now in my possession two copies of these entries upon the Recorder's Minutes, made before the erasure of the claimant's name and the word forty, and of the subsequent interlineations of another name and of the word thirty.’ He refers frequently to pages 49 & 50 to prove that the lot was forty arpents deep, and asserts that the positive testimony on these pages ought not to be overruled by the ‘ questionable testimony at p. 116.’ The underscoring is from the original letter.

2. The claim of Joachim Roy's legal representatives for a lot containing one arpent and a half by about forty in depth, bounded north by the field lot formerly owned by Madame Lecompte, east by the claim of widow Camp's legal representatives, south by a field lot formerly owned by Tabeau, and west by land unknown, near to Gratiot's. (From Hunt's Minutes, p. 49.)

3. Registry of certificate of confirmation, dated July 30, 1825, in favor of Joachim Roy's representatives, for a lot of one and a half arpents front by about thirty deep, bounded north by Guion's legal representaives, south by Tabeau's legal representatives, east by Auguste Chouteau's mill tract, west by claim of Charles Gratiot.”

These two documents the court admitted.

“4. The same claim and certificate, with the depositions of Francis Cayoux and Eustache Cayoux thereto annexed, as follows:

‘Francis Cayoux, being duly sworn, says that he knows the field lot claimed, and that this deponent, forty years ago, with Joachim Roy, cultivated this field lot, and continued to cultivate the same with said Roy until the fence was taken down about twenty-five or twenty-six years ago. This deponent says that his mother, after the death of his father, married Joachim Roy, and in that way living with Roy he became acquainted with this field lot. He has no interest in this claim whatever.

FRANCIS his mark CAYOUX.

Sworn to before me, July 7, 1825.

Theodore Hunt, Recorder L. T.'

‘Eustache Cayoux, being duly sworn, says that he knows the field lot claimed, and that upwards of thirty years this lot was owned and cultivated by Joachim Roy, who cultivated the same until the fence was taken down; and this deponent further says he has no interest whatever in the field lot, neither directly nor indirectly.

EUSTACHE his mark. CAYOUX.

Sworn to before me, July 7, 1825.

Theodore Hunt, Recorder L. T.'

(See Hunt's Minutes, pp. 49-50.)”

The plaintiff objected to the admission of the depositions as incompetent, and the court sustained the objections and excluded the same, to which the defendant excepted.

“5. The claim and certificate of confirmation of A. Guion's legal representatives for a lot in the cul de sac, dated July 30, 1825, calling for “““cadet Jean Rion” as its southern boundary.

6. Claim and registry of confirmation of Tabeau's legal representatives, dated 10th August, 1825, in same common field, calling for lot ‘claimed by Jean Rion's legal representatives' as its northern boundary.

7. Concession to Cottard of one by forty arpents, taken from (i. e. commencing at) ‘ trait carre,’ meaning the west line of the common field fence and in cul de sac.

8. Survey of same showing that this concession to Cottard was wholly east of the premises in dispute.

9. Claim of widow Camp and confirmation by the old Board. This claim is north of Chouteau's mill tract. The premises in dispute only touch the S. W. corner of the mill tract.

10. Plat of Chouteau's mill tract in 1803, showing that it was bounded on the west by ‘ vacant lands.’

11. Admission of counsel that New Madrid certificate was located so as to cover the premises in dispute in 1818, surveyed by the United States and patent certificate issued, and that this title is vested in de fendant.

12. Adolph Renard, Recorder of land titles, testified that he had been in the recorder's office since 1836, and had been Recorder since 1847; that the annotation on Guion's claim ‘in Chouteau mill tract,’ was in the handwriting of Hunt; he believed the entries on pp. 49 and 116 of Hunt's Minutes in regard to the Roy claim, and mutually referring to each other as one and the same claim, were also in Hunt's handwriting.”

The defendant then offered to prove by him that these annotations had always, since he had been Recorder, been treated by him in his office as a part of the record, and were so considered.

The court, on plaintiff's objection, excluded this testimony, and defendant excepted.

Witness testified that a portion of the cul de sac, as at present surveyed. was embraced within the Chouteau mill tract; but he knew nothing of this personally. He gathered all his information from records in his office.

The defendant then offered the claims of Guion, with the annotations also the claim of Roy with the annotations; both of which the court ex cluded, and he excepted.

The defendant also offered the claim of Roy as contained on page 116, with the erasures and without the annotations, which the court excluded.

The defendant then introduced John B. Pourcelli, who testified that the cul de sac common field was embraced within the western part of Chou teau's mill tract, and did not embrace the premises in dispute. One o two other witnesses testified to the same thing.

The court then gave the following instructions for the plaintiff, to the giving of which the defendant excepted:

No. 1. The certified copy of the registry of confirmations, read in evidence, is prima facie proof that Joachim Roy inhabited, cultivated or possessed the land therein described prior to the 20th day of December, 1803.

No. 2. The survey made by the Government of the United States of the tract of land confirmed to Joachim Roy, or his legal representatives, is prima facie evidence of the true location of the land so confirmed. And if the jury find from the evidence that the premises sued for in this case are within said survey No. 3307--if the respective wills of Joachim Roy and Veronique Guitard, and the deeds read in evidence by the plaintiff, are genuine, then the plaintiff is entitled to recover in this action, unless the jury should find from the evidence that Joachim Roy, prio to the 20th December, 1803, abandoned his possession and claim of the said premises, or that the lot which he actually cultivated and claimed in the cul de sac common fields is not the same that is claimed in part by the plaintiff in this suit.

No. 3. Abandonment of a lot or tract of land is the voluntary relinquishment of the former proprietor of all right or pretence of claim thereto, and such abandonment may be proved by facts and circumstances. And in the case under consideration if the jury find that Joachim Roy, prior to the 20th December, 1803, cultivated, inhabited or possessed the land in question; before the jury can find that he abandoned the said land, the jury should be satisfied from all the facts and cir cumstances given in evidence in this case that said Roy voluntarily relinquished all right or pretence of claim to said land. Although the jury may find from the evidence that Joachim Roy, prior to the 20th December, 1803, ceased to cultivate the land in question, that fact of itself is not sufficient to prove that he abandoned his claim to said land.

No. 4. If the jury...